State v. Mason, 02-291.

• Citation: 82 P.3d 903,2003 MT 371,319 Mont. 117
• Decision Date: 24 December 2003
• Docket Number: No. 02-291.,02-291.
• Court: United States State Supreme Court of Montana
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jeffrey Gordon MASON, Defendant and Appellant.

82 P.3d 903

2003 MT 371

319 Mont. 117

STATE of Montana, Plaintiff and Respondent, v. Jeffrey Gordon MASON, Defendant and Appellant.

No. 02-291.

Supreme Court of Montana.

Submitted on Briefs December 23, 2003.

Decided December 24, 2003.

For Appellant: Daniel R. Wilson, Measure & Wilson, Kalispell, Montana.

For Respondent: Mike McGrath, Attorney General; Brian Morris, Solicitor, Helena, Montana, Robert J. Long, County Attorney; Mitchell A. Young, Deputy County Attorney, Polson, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 The defendant, Jeffrey Mason (Mason), was charged in the Montana Twentieth Judicial District Court, Lake County, with ten criminal counts. Pursuant to a plea bargain agreement, all charges against Mason were dismissed except for two counts of assault, felonies in violation of § 45-5-201(1)(a), MCA (1997), and one count of criminal possession of a dangerous drug, a felony in violation of § 45-9-102(1), MCA (1999). Mason pled guilty to one of the felony assault charges and nolo contendere to the other, and pled guilty to criminal possession of oxycodone, a dangerous drug. At sentencing, the District Court found Mason was a persistent felony offender and a violent felony offender and sentenced him to three thirty-year terms, to be served concurrently with twenty years suspended on each term. Mason now challenges the legality of his sentence. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 Mason presents the following issues on appeal:

¶ 3 1. Did the District Court violate Mason's due process rights at the sentencing hearing by considering allegations of other crimes which were dismissed pursuant to the plea bargain agreement?

¶ 4 2. Did the District Court abuse its discretion at the sentencing hearing by considering allegations of other crimes which were dismissed pursuant to the plea bargain agreement?

¶ 5 3. Did the District Court err in designating Mason a violent felony offender?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 In January of 2001, Department of Public Health and Human Services (DPHHS) personnel advised the Lake County Sheriff's Department that they were investigating reports that a fourteen-year-old male juvenile, C.S., had been sexually assaulted by his stepfather, Jeffrey Mason, for a period of years before being removed from the home in 1999 following evidence of physical abuse. DPHHS requested investigators interview C.S. concerning the alleged abuse.

¶ 7 Following a forensic evaluation of C.S. by Karen Mielke, M.D., Detective Andy Cannon (Detective Cannon) of the Lake County Sheriff's Department interviewed C.S. During the interview, C.S. disclosed to Detective Cannon that he had been physically and sexually assaulted by Mason for a period of approximately eight years, following his mother's marriage to Mason. In addition to horrific sexual molestations and drug use, C.S. relayed an instance of physical abuse in which Mason grabbed him by the back of the head, slammed him up against a wall, then knocked him to the floor where he repeatedly hit and kicked him. As C.S. was getting up to exit the residence, Mason seized the child, threw him into a cedar chest, and then out the front door. C.S. suffered several bruises as a result of the assault. C.S. also indicated Mason occasionally beat him with a belt. ¶ 8 Based upon the information C.S. provided during the interview, the Lake County Sheriff's Department obtained a search warrant for Mason's house. In executing the warrant, officers discovered items consistent with C.S.'s allegations of Mason's sexual abuse and drug use, including pornographic magazines and videos discussing incest, sex toys, marijuana, a hypodermic needle, and a cooking spoon bearing a powdery, white substance consistent with methamphetamine.

¶ 9 On February 13, 2001, Mason was charged with crimes allegedly perpetrated against C.S. during the time the child resided with him, including two counts of assault, felonies in violation of § 45-5-201(1)(a), MCA (1997), and two counts of felony incest, in violation of § 45-5-507(1), MCA (1997). Mason was additionally charged with one count of criminal possession of dangerous drugs, a misdemeanor in violation of § 45-9-102(2), MCA (1999); and one count of criminal possession of drug paraphernalia, a misdemeanor in violation of § 45-10-103, MCA (1999).

¶ 10 Following Mason's arrest, the three children living at the Mason residence, N.S., R.M., and A.M., were removed from the home and placed with separate foster parents. Following their removal, R.M., Mason's biological child, then five years old, disclosed that he was also physically and sexually abused by Mason.

¶ 11 On April 18, 2001, the State filed an amended Information, which included those offenses allegedly committed against R.M., including one count of felony assault on a minor, in violation of § 45-5-212, MCA (1999), and one count of incest, a felony in violation of § 45-5-507(1), MCA (1999). The State also added to the charges two counts of criminal possession of dangerous drugs, felonies in violation of § 45-9-102(1), MCA (1999), for the alleged possession of methamphetamine and oxycodone.

¶ 12 On October 18, 2001, Mason entered a plea bargain agreement with the State, agreeing to plead guilty to one count of felony assault on C.S. and nolo contendere to the other count of felony assault on C.S., and to plead guilty to possession of oxycodone, a dangerous drug. The plea agreement also required that Mason relinquish his parental rights to R.M., N.S., and A.M. in a separate proceeding pending before the Lake County District Court. In exchange, the State would dismiss the remaining charges against Mason and recommend that he be sentenced, pursuant to Montana's Persistent Felony Offender Statute, to thirty years in state prison with all but ten years suspended.

¶ 13 That same day, Mason appeared before the District Court and entered pleas according to the plea bargain agreement. The court accepted Mason's pleas, dismissed the remaining charges, and ordered the preparation of a Presentence Investigation Report (PSI). Mason informed the court that he felt the context in which the psychological evaluation performed by Edward Trontel, Ph.D., earlier that year was prejudiced against him in light of the fact that Dr. Trontel had previously interviewed C.S. regarding allegations of physical abuse. Mason indicated he was willing to submit to a new psychological evaluation, which the State did not oppose, and the court allowed.

¶ 14 On November 29, 2001, the District Court received a PSI prepared by Probation and Parole Officer Kim Christensen (Christensen) for Mason's sentencing hearing. In addition to the new psychological evaluation performed at Mason's request, Christensen attached the original psychological evaluation prepared by Dr. Trontel to the PSI. Dr. Trontel's report referenced C.S.'s allegations of "long-standing, extensive, and sadistic sexual molestations" by Mason, as well as Mason's arrest for child sexual abuse. The PSI additionally contained the following handwritten statement, dictated and signed by C.S.:

I don't feel its [sic] fair that Jeff should only due [sic] 10 years. He should get 40 years and no parole. He should get at least 10 years probation. I feel that everyone should know he is a sex offender and abuser. I will live with what he did to my-self [sic] and family for the rest of my life. Jeff beat me and raped and sodomized me orally and anally almost every day. He also threatened to kill me if I ever told anyone.

A newspaper article concerning the sentence of a man convicted for sexually molesting a boy was attached to C.S.'s statement. Based upon the "substantiated physical, psychological and emotional abuse [by] the Defendant, the allegations of sexual abuse made by the victim in this cause, the Defendant's admission he whipped his stepson, and reports that indicate the Defendant used drugs in front of his children," Christensen recommended that, as a condition of his probation, Mason have no contact with children under eighteen years old.

¶ 15 Mason responded with a Sentencing Memorandum objecting to many of the factual matters and conditions of sentence recommended in the PSI. In particular, Mason objected to the inclusion of C.S.'s statement and the attached newspaper article. Citing relevant case law in support, Mason maintained that it would be fundamentally unfair and a violation of his constitutional right to due process to be sentenced based upon conduct that was unproven and for which he had not been convicted.

¶ 16 On December 3, 2001, the District Court held a sentencing hearing at which Mason, along with his counsel, were present. The State offered the testimony of social worker, Robin Moll (Moll), who testified, over Mason's objection, that she believed Mason sexually abused all his children. Moll further testified that, upon removing the children from the home following Mason's arrest, she observed bruising on R.M.'s ears and body, and a bruise on N.S.'s forehead.

¶ 17 After hearing the testimony presented, the District Court found Mason a persistent felony offender and a violent felony offender and sentenced him to three thirty-year sentences at the Montana State Prison, or thirty years per offense, with twenty years suspended on each count. At the close of the hearing, Mason's counsel asked the District Court whether it had considered C.S.'s statement in fashioning Mason's sentence, to which the court replied:

It certainly has considered all the statements of both the young people and the adults in fashioning this sentence, and has been primarily, though, focused on the sentence by the attorneys who are most familiar with the facts and circumstances of this case and who entered into a plea agreement that granted the court a limited amount of discretion and also had the opportunity to present evidence in support of their positions today.

The court...